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Victims and Witnesses Authority carries out duties in spite of hurdles
Sri Lanka’s victim and witness protection mechanism has granted safety to six persons since 2016 but lacks a functioning ‘protection directorate’, cannot hire investigation or protection officers for want of space and needs more monies for a fund it created to pay compensation to victims.
The UN Development Programme (UNDP) has granted the National Authority for the Protection of Victims of Crimes and Witnesses Rs 40mn. The first tranche was released via the Treasury only in February 2018. The grant will go towards making police, judges, lawyers, doctors and other groups aware of the provisions of the Assistance to and Protection of Victims of Crime and Witnesses Act. Some of it will also be for infrastructure development.
The Authority was established in January 2016 as a statutory body. While the Board of Management, headed by Suhada Gamlath, former Solicitor General, was appointed at the time, the first employees were recruited in July last year.
The office was set up on the first floor of the Children’s Magistrate Court building in Denzil Kobbekaduwa Mawatha in Battaramulla. But everything had to be started from scratch with a meagre capital budget of Rs 15mn from the Treasury. There was no furniture, staff had no computers, no lunch room or air conditioning and the toilets needed renovating. A new set of filing cupboards arrived as late as last week.
The Authority received 12 complaints in 2016 and 49 last year. This year, there have already been 70. And despite the challenges, insists its Director Legal and Law Enforcement, the cases are being handled under the terms of the law.
Not all of these are requests for protection, said Sajeewani Kasthuariarachchi. She is one of just two lawyers at the Authority (while the Board secretary is also an attorney, she has other duties) tackling legal matters. “The complaints are divided into categories and most of them are violations of rights and entitlements under the Act,” she said.
For instance, the law entitles witnesses to receive from investigational, quasi-judicial and judicial authorities fair and respective treatment with due regard to dignity and privacy. A witness shall not be harassed, intimidated, coerced or violated. The Act also grants rights and entitlements to victims and whistleblowers.
In matters such as these, the Authority conducts inquiries and issues orders to the violator to correct his or her behaviour or to the police to file due action against a perpetrator. Some cases are referred to relevant institutions. In issues where protection is needed, the Authority coordinates with the Victims of Crime and Witnesses Assistance and Protection Division of the police at Mihindu Mawatha in Colombo 12. Secrecy clauses prevent the disclosure of details.
Investigation and protection officers are an urgent requirement and applications were received about one year ago but “we have no space to locate them”. Of a total approved cadre for the Authority of 54 staff, only 30 vacancies have been filled. There are still no Tamil or Muslim employees.
The key position of Director General and Director (Assistance and Protection) remains empty owing to “very little expertise in this sector”, an Authority official said, adding that it required an independent officer with specialised knowledge and experience.
The development of an organisational structure, creation of positions, stipulation of job functions and approvals for schemes of recruitment and salaries took a considerable period of time, said Yasantha Kodagoda, representative of the Attorney General’s Department on the Board of Management. While positions were advertised, only some could be filled. Competent professionals were reluctant to join State institutions, he said, particularly as salaries and other entitlements were not attractive.
Because the Authority does not have a functioning Protection Directorate, requests are channelled to the Police Witness Protection Division. “Careful consideration is given to whether the perceived threat emanates from the police themselves,” Mr Kodagoda maintained. (A key concern about the prevailing mechanism is that the police might be perpetrators of actions that victims or witnesses are seeking redress from).
Any request for protection is followed by an independent threat assessment. “It is only thereafter that a considered decision is taken on whether or not to provide protection,” Mr Kodagoda said. The nature of the protection depends on the nature of threat, identity of person or persons from whom the threat seems to be emanating and the requirements of the victims or witnesses. At present, round-the-clock protection is being provided by the Police Division to one person.
There are also instances where other measures were taken–such as extra checks by area police, random police visits and so on. “Up to now, no protection receiver has received any harm after measures were put in place and no person has complained of inadequacy of protection provided,” Mr Kodagoda said. He pointed out, however, that not all requests were genuine or made in good faith. “However, in abundance of caution, every request is taken seriously,” he stressed.
Victims can also request compensation from the Authority for bodily or mental injury, loss or damage to property and money needed to get medical treatment, rehabilitation or counselling. No requests have yet been received. In any event, Authority officials said, there were no funds to provide the service.
A separate fund was set up. Magistrates and High Court Judges are required to exercise judicial discretion and make orders on accused to make payments–up to 20% of the maximum fine payable for the offence–to Court and for Court to remit that money to this fund.
“We have notified the Judicial Service Commission of the creation of this fund and the bank account details,” Mr Kodagoda said. “Unfortunately, only one or two judicial officers have so far made orders in terms of the relevant provision of law. We expect philanthropists to also donate money to this account.” (The Balapitiya and Horana Magistrates are active in this regard).
Discussions have started with the Bar Association of Sri Lanka and the Legal Aid Commission to create a group of pro-bono lawyers who would appear for victims and made applications for compensation to Court.
The Assistant Director of Legal of the National Authority recently appeared before the High Court of Colombo and made a request for compensation on behalf of a victim of child abuse and secured for the victim a sum of Rs 350,000. Other requests will be similarly entertained.
At present, the Authority does not have resources to set up safe houses, although the law provides for it. Neither have policies been drawn up nor provisions made for re-identification, permanent relocation and temporary or permanent employment.
The Authority sits fortnightly and supervises the work. “We have personal supervision over measures taken to provide protection to people who ask for it,” said Chairman Suhada Gamlath. He admitted that modules, regulations and other policies have to be drafted.
“We have not yet gone to the extent of safe houses,” he continued. “It is a big process requiring more finances. We are still at teething level. Right now, if an urgent situation arises, we will collaborate with other institutions that provide this facility.”
Meanwhile, next month a subcommittee of the Board will meet over 25 civil society organizations who are interested in working in the field of providing assistance to victims of crime and witnesses. It will identify areas of partnership. Work is already being done with Transparency International Sri Lanka in developing a poster for police stations, court houses and so on.